UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

GRANT K. BEATTIE, 

 Plaintiff-Appellant, 

v. 

STEVEN J SMITH, a tribal police officer 

for the Prairie Band Potawatomi Tribal 

Police Department, sued in his individual 

and official capacity; RYAN BAUER, a 

tribal police officer for the Prairie Band 

Potawatomi Tribal Police Department, 

sued in his individual and official 

capacity; MICHAEL K. BOSWELL, a 

Tribal Chief of Police for the Prairie 

Band Potawatomi Tribal Police 

Department, sued in his individual and 

official capacity; BETH JAMES; MARIA 

HUSKE; JEREMY RODECAP; 

PRAIRIE BAND POTAWATOMI 

NATION; PRAIRIE BAND 

POTWATOMI TRIBAL POLICE 

DEPARTMENT, 

 Defendants-Appellees. 

No. 13-3053 

(D.C. No. 2:12-CV-02596-JTM-JPO) 

(D. Kan.)

FILED 

United States Court of Appeals 

Tenth Circuit 

November 13, 2013

Elisabeth A. Shumaker 

Clerk of Court
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ORDER AND JUDGMENT*

 

Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and 

O’BRIEN, Circuit Judge. 

 

 Grant K. Beattie was arrested at a resort operated by the Prairie Band 

Potawatomi Nation (PBPN or Tribe) and charged with lewd and lascivious behavior 

and disorderly conduct. He was tried and acquitted in state court. He then brought 

this civil rights action against the PBPN, its Tribal Police Department, and certain 

tribal police officers and resort security personnel, asserting claims under 42 U.S.C. 

§ 1983 and Kansas state law. The tribal entities moved to dismiss his complaint, and 

the individual defendants moved for judgment on the pleadings. The district court 

granted both motions and closed the case. Mr. Beattie appeals. We have jurisdiction 

under 28 U.S.C. § 1291. 

 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
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I. BACKGROUND

A. Factual Allegations in the Complaint

 Mr. Beattie’s complaint recites that on September 10, 2011, he and his wife 

were guests at the Prairie Band Casino & Resort (Resort), located on the PBPN’s 

reservation in Kansas. That evening, his wife planned to go shopping, and he 

planned to watch a football game in the room. Both decided to bathe first. After his 

wife had finished bathing and was getting dressed, Mr. Beattie stripped down to his 

underwear in preparation for his bath. Before entering the tub, he walked his wife to 

the patio door in their hotel room. 

 Resort guests commonly enter and leave through their rooms’ patio door to 

access the hotel’s central courtyard. The glass patio doors and windows of the guest 

rooms are covered by two curtains, one made of solid fabric and the other of sheer 

material that permits limited visibility. When Mr. Beattie’s wife left the room, the 

solid curtain was closed over the room’s window and the sheer curtain was closed 

over both the window and the patio door. 

Mr. Beattie’s wife pulled the sheer curtain out of the way and left through the 

patio door. He kissed her goodbye, closed the door, and watched her from the 

doorway as she walked across the courtyard. With his left hand, Mr. Beattie held 

open the top portion of the sheer curtain so that he could observe his wife crossing 

the courtyard. He used his right hand to hold the lower portion of the sheer curtain 

closed, to avoid being seen in his underwear. 
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Ms. Robinson, a hotel guest who was in the courtyard area with her family, 

reported to a hotel clerk that she had “witnessed a man looking out the window of 

[Mr. Beattie’s] room and masturbating.” App. at 22 ¶ 54. Defendant Maria Huske, a 

Resort security officer, was dispatched to meet with Ms. Robinson. Ms. Robinson 

reported to her that “she saw [a] guest in [Mr. Beattie’s] hotel room open his window 

shade [and] wrap it around his neck while he actively masturbated.” Id. ¶ 56 

(quoting Huske report). 

Ms. Huske observed Mr. Beattie’s room, saw him pull back the shade, and 

noted that he was wearing a black-t shirt that reached his mid-thigh level. 

Mr. Beattie was not wearing pants, and his t-shirt was sufficiently long that 

Ms. Huske could not tell whether he was wearing underwear. In later documenting 

the incident, she did not report observing him engaged in any lewd behavior. 

 Ms. Huske reported these events to her supervisor, defendant Jeremy Rodecap. 

Mr. Rodecap instructed the Resort’s security dispatcher to contact the Tribal Police 

Department, which dispatched defendant officers Stephen J. Smith and Ryan Bauer to 

the scene. Officer Bauer contacted Ms. Robinson after he arrived at the Resort, but 

neither officer interviewed Ms. Robinson until after they had arrested Mr. Beattie. 

At the Resort, Officer Smith spoke with Ms. Huske, who allegedly told him 

that “She seen [sic] the male standing in the window without any pants on and he was 
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masturbating.” Id. at 23 ¶ 66 (quoting Smith report).1

 Ms. Huske informed Officer 

Smith where he could find Ms. Robinson, but he did not interview her. Instead, he 

joined Officer Bauer at the patio door to Mr. Beattie’s room. 

Mr. Beattie noticed the officers standing outside his door, so he opened it and 

asked them what was going on. The officers requested permission to come inside 

and talk to him. He agreed. Ms. Huske and an additional Resort security officer also 

entered the room. 

After Officer Smith obtained Mr. Beattie’s driver’s license, Officer Bauer ran 

a criminal history check on Mr. Beattie, which showed no prior reported criminal 

history or incidents. Officer Smith interrogated Mr. Beattie, who denied 

Ms. Robinson’s allegations. 

Officer Bauer took Mr. Beattie’s picture with his camera phone, then left the 

room. He returned after a moment, presumably after having shown the camera phone 

picture to either Ms. Robinson or Ms. Huske for identification purposes, and reported 

“Yup that’s him.” Id. at 25 ¶ 94. Officer Smith then asked Resort security officer 

Beth James whether she wanted to press charges. She responded, “Under the 

circumstances, yes.” Id. ¶ 96. Officer Smith then read Mr. Beattie his Miranda

rights, arrested him without a warrant, and transported him to jail. 

 1

 It is not clear from the complaint whether “She” refers to Ms. Robinson or 

Ms. Huske. If Ms. Huske, this would severely undercut Mr. Beattie’s claim that the 

officers improperly relied on “limited, second-hand information from . . . 

[Ms.] Huske.” Aplt. Opening Br. at 25. Read in the light most favorable to 

Mr. Beattie, we will assume “She” refers to Ms. Robinson. 
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At the time of arrest, Officer Smith purportedly told Mr. Beattie, “You are 

being accused by two witnesses one a guest and one a hotel employee that you were 

standing at the glass with a towel around you between the curtain and the glass fully 

exposing yourself [sic] and masturbating.” Id. at 26 ¶ 105. In response to 

Mr. Beattie’s denials, Officer Smith asserted that “two separate people at two 

different times advise[d that] he was doing such activity.” Id. at 27 ¶ 118 (internal 

quotation marks omitted). Officer Smith also told Mr. Beattie that he was being 

charged with disorderly conduct because “anytime people are believed by [tribal 

police] to violate [the Kansas lewd and lascivious behavior statute] the [Tribal Police 

Department] always includes an additional charge for violating [the disorderly 

conduct statute].” Id. at 28 ¶ 131. Officer Smith was at the scene for a total of nine 

minutes. 

A criminal complaint was eventually issued charging Mr. Beattie with a 

misdemeanor violation of Kansas Stat. Ann. § 21-5513(a)(2) (lewd and lascivious 

behavior) and with violating § 21-6203(a)(3) (disorderly conduct). He was tried and 

found not guilty of both charges. 

B. District Court Proceedings and Issues on Appeal 

Mr. Beattie’s federal court complaint asserted eight causes of action against 

the defendants, including § 1983 claims against the officers for arresting him without 
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probable cause or exigent circumstances in violation of the Fourth Amendment.2

 The 

district court dismissed the § 1983 claims against the officers, concluding that 

Mr. Beattie failed to state a claim and that the officers were entitled to qualified 

immunity. It dismissed the state-law claims against the individuals because those 

claims were subject to the discretionary function exception in the Kansas Tort Claims 

Act (KTCA). It dismissed the claims against the Tribal Defendants because the 

Tribal Police Department is not a jural entity and because Mr. Beattie failed to plead 

a sufficient claim for vicarious liability against either the Tribe or the Tribal Police 

Department. 

On appeal, Mr. Beattie has abandoned all of his claims except for his § 1983 

claims against Officers Smith and Bauer; his Kansas state-law claims for false 

arrest/false imprisonment and malicious prosecution against the officers and Resort 

security employees Beth James, Maria Huske, and Jeremy Rodecap; and his 

“vicarious liability claims against the Tribal Defendants.” Aplt. Opening Br. at 16. 

II. DISCUSSION 

“We review de novo the district court’s granting of a motion to dismiss under 

Federal Rule of Civil Procedure 12(b)(6),” Slater v. A.G. Edwards & Sons, Inc., 

719 F.3d 1190, 1196 (10th Cir. 2013) (internal quotation marks omitted), including 

 2

 His complaint included § 1983 claims based on “summary punishment and 

denial of due process,” false arrest, malicious prosecution, “violative processes, 

procedures, practices, and customs”; and state-law claims for false arrest/false 

imprisonment, malicious prosecution, negligent supervision, and negligent training. 
- 8 - 

the grant of a motion to dismiss based on qualified immunity.” Weise v. Casper, 

593 F.3d 1163, 1166 (10th Cir. 2010). “To defeat a motion to dismiss, a complaint 

must plead facts sufficient to state a claim to relief that is plausible on its face.” 

Id. (internal quotation marks omitted). 

“We review a district court’s grant of a motion for judgment on the pleadings 

de novo, using the same standard that applies to a Rule 12(b)(6) motion.” Colony 

Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (internal quotation marks 

omitted). “[W]e accept all facts pleaded by the non-moving party as true and grant 

all reasonable inferences from the pleadings in favor of the same.” Id. (internal 

quotation marks omitted). “A motion for judgment on the pleadings should not be 

granted unless the moving party has clearly established that no material issue of fact 

remains to be resolved and the party is entitled to judgment as a matter of law.” 

Id. (internal quotation marks omitted). 

A. Claims Against Officers Smith and Bauer

1. Fourth Amendment § 1983 Claim 

The district court dismissed the § 1983 claims against the officers both for 

failure to state a claim and because the officers were entitled to qualified immunity. 

We affirm the dismissal because the officers were entitled to qualified immunity. To 

survive a motion to dismiss for qualified immunity, a plaintiff’s complaint must 

allege facts sufficient to show that the defendants plausibly violated his federal 

rights, and that those rights were clearly established at the time. See Robbins v. 
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Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). Once defendants have asserted a 

qualified-immunity defense, it is the plaintiff’s burden to show, “by reference to 

cases from the Supreme Court, the Tenth Circuit, or the weight of authority from 

other circuits” that the right allegedly violated was clearly established at the time of 

the conduct at issue. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). 

 a. Probable Cause and Qualified Immunity

Mr. Beattie contends that the officers lacked probable cause to arrest him. 

Although we conclude that Mr. Beattie’s complaint states a plausible lack of probable 

cause claim, he fails to show that the officers violated clearly established law. 

i. Violation of a Constitutional Right 

We begin by asking whether the complaint plausibly alleges a violation of a 

constitutional right. We ask whether, under the facts alleged, an objectively 

reasonable officer could have concluded that there were sufficient facts at the time of 

the arrest to supply probable cause. See Cortez v. McCauley, 478 F.3d 1108, 1116 

(10th Cir. 2007) (en banc) (stating objective test for probable cause). If not, the 

arrest was unlawful. “Probable cause is based on the totality of the circumstances, 

and requires reasonably trustworthy information that would lead a reasonable officer 

to believe that the person about to be arrested has committed or is about to commit a 

crime.” Id. 

The officers assert they had probable cause to arrest Mr. Beattie based on 

Ms. Huske’s statements to Officer Smith. To defeat qualified immunity Mr. Beattie 
- 10 - 

must show that these statements “did not constitute reasonably trustworthy 

information sufficient to lead a prudent police officer to conclude” that Mr. Beattie 

committed the charged crimes. Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995). 

In particular, he must show that “the information known to [the officers] did not 

establish probable cause.” Id. 

To meet his burden, Mr. Beattie argues the officers relied on “limited, 

second-hand information from [Ms.] Huske.” Aplt. Opening Br. at 25. They thereby 

impermissibly delegated to a security guard their duty to investigate his alleged crime 

and to make an independent probable cause determination. Specifically, he 

complains that the officers failed to interview Ms. Robinson or any other potential 

witnesses who were readily available at the scene. 

We have held that “the probable cause standard of the Fourth Amendment 

requires officers to reasonably interview witnesses readily available at the scene, 

investigate basic evidence, or otherwise inquire if a crime has been committed at all 

before invoking the power of warrantless arrest and detention.” Cortez, 478 F.3d at 

1117 (internal quotation marks omitted). The question here is whether it was 

reasonable for Officer Smith to accept Ms. Huske’s report of her conversation with 

Ms. Robinson without talking personally to Ms. Robinson or to anyone else who 

might have been a firsthand witness to the events. 

The duty to investigate is subject to a standard of reasonableness. See id. 

Mr. Beattie’s complaint does not assert any specific facts known to the officers at the 
- 11 - 

time of arrest that would have called Ms. Huske’s or Ms. Robinson’s credibility 

into question. Nevertheless, he does allege that the officers failed to interview 

Ms. Robinson, a readily available eyewitness whose credibility was crucial to the 

case against Mr. Beattie, before arresting him. Accepting the complaint’s allegations 

as true and understanding the alleged facts in the lights most favorable to Mr. Beattie, 

we are unable to say that Mr. Beattie’s complaint fails to allege facts sufficient to 

show that the defendants plausibly violated his Fourth Amendment rights. But to say 

that the complaint alleges a violation of a clearly established right would go too far. 

ii. Clearly Established Law 

Even if the reasonableness of the officers’ investigation is subject to dispute, 

the officers were entitled to qualified immunity on the second prong of the inquiry: 

whether Mr. Beattie’s complaint pleads facts showing they violated clearly 

established law. “Qualified immunity gives government officials breathing room to 

make reasonable but mistaken judgments, and protects all but the plainly incompetent 

or those who knowingly violate the law.” Stanton v. Sims, 81 U.S.L.W. 3600, 2013 

WL 5878007, at *2 (U.S. Nov. 4, 2013) (per curiam) (internal quotation marks 

omitted). “We do not require a case directly on point before concluding that the law 

is clearly established, but existing precedent must have placed the statutory or 

constitutional question beyond debate.” Id. (internal quotation marks omitted). The 

cases Mr. Beattie cites do not clearly establish a duty to interview the alleged 

eyewitness under circumstances comparable to those in this case. 
- 12 - 

Mr. Beattie relies on Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir. 

1998). There we denied qualified immunity to officers who arrested the plaintiff for 

shoplifting after they had viewed a videotape of the incident that supported the 

plaintiff’s story that she had done no such thing. Under those circumstances, “[i]t 

was . . . not reasonable for the officers to rely on the security guards’ allegations” 

that the plaintiff had stolen a ring from the store. Id. at 1257. The incident “was 

memorialized in its entirety on the videotape,” which the officers had viewed and 

which should have exculpated the plaintiff. Id. Here, by contrast, no such 

exculpatory record allegedly existed that would have cast doubt on Ms. Huske’s 

report to the officers. 

Nor does Cortez v. McCauley clearly establish a duty to interview 

Ms. Robinson. In that case, officers responded to a telephone call from a nurse 

stating that a woman had brought her daughter to the hospital asserting that the child 

had complained that her babysitter’s boyfriend had molested her. Cortez, 478 F.3d at 

1113 (internal quotation marks omitted). Without (1) interviewing the girl, her 

mother, the nurse, or the attending physician; (2) inspecting the girl’s clothing for 

signs of sexual assault; or (3) waiting for a preliminary report from the doctor, the 

officers arrested the “boyfriend” (actually the babysitter’s husband). Id. at 1117. 

The hospital found no evidence of molestation, and the child’s mother later admitted 

she had recently argued with the plaintiffs over child care. 
- 13 - 

We held in Cortez that “it was unreasonable for the officers to rely on the 

nurse’s double-hearsay statement about what the girl said, when they could have 

interviewed the girl or her mother directly.” Id. at 1119 n.12. Whether viewed as a 

case where more pre-arrest investigation was needed because the officers had 

insufficient information, or as one involving inadequate corroboration, “what the 

officers had fell short of reasonably trustworthy information indicating that a crime 

had been committed by [the husband-plaintiff].” Id. at 1117. Here, by contrast, no 

such corroborative expert advice or physical evidence was reasonably available, the 

eyewitness was not a potentially untrustworthy two-year-old child, and Officer Smith 

spoke to Ms. Huske rather than simply relying on information relayed by a telephone 

call. 

Also unavailing are two other Tenth Circuit cases that Mr. Beattie mentions in 

this brief: Romero, and Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 

1984), vacated on other grounds, 474 U.S. 805 (1985). In Romero, police officers 

arrested the plaintiff without a warrant and without interviewing his alibi witnesses. 

Although we stated the general rule that “the Fourth Amendment requires officers to 

reasonably interview witnesses readily available at the scene,” Romero, 45 F.3d at 

1476, we noted that the plaintiff did not contend that the defendant officer “failed to 

investigate fundamental evidence at the crime scene,” id. at 1477. We concluded the 

officer should therefore have been granted qualified immunity. Here, as in Romero, 

the arresting officer reasonably “concluded based on the facts and information known 
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to him that probable cause existed to arrest [the plaintiff].” Id. at 1478. Romero does 

not clearly establish law in support of Mr. Beattie’s claim. 

In Lusby, the plaintiffs were customers at a T.G. & Y. store. They were 

arrested after one of them purchased a pair of sunglasses, then re-entered the 

checkout line to purchase some hairspray. An assistant manager at the store 

witnessed only the second purchase, and summoned an off-duty policeman employed 

by T.G. & Y. as a plainclothes security officer to investigate whether the sunglasses 

had been shoplifted. The security officer stopped the customer who purchased the 

sunglasses and asked him for a receipt. The customer explained that he had paid for 

the sunglasses but had lost the receipt. The security officer then informed him he 

was under arrest for shoplifting. Police officers who had arrived at the scene took the 

plaintiffs into custody. After the plaintiffs were arrested and transported to jail, the 

cashier informed managers at the store that the customer had paid her for the 

sunglasses. We agreed with plaintiffs that the officers’ arrest, “based solely on [the 

security officer’s] accusations and without any independent police investigation to 

ascertain probable cause, support[ed] the jury’s finding of a civil rights violation.” 

Lusby, 749 F.2d at 1434. 

The facts in Lusby differ from those in this case. In Lusby, it should have been 

obvious that before the customer was arrested, someone needed to interview the 

cashier, who was likely the only person on the scene with actual knowledge 

concerning whether the customer had taken the sunglasses without paying for them—
- 15 - 

an essential element of the crime. Even the security officer had not interviewed the 

cashier before speaking to the officers. Here, by contrast, Ms. Huske had 

interviewed Ms. Robinson, an eyewitness who claimed to have first-hand knowledge 

of facts required to supply probable cause to believe that Mr. Beattie had committed 

a crime. 

Finally, Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010), does not 

support Mr. Beattie’s argument. In that case, officers arrested a male suspect after a 

witness had reported hearing a female yelling at a child. Before the plaintiff was 

arrested, the witness who heard the yelling provided further information that 

undermined probable cause, and no child was found at the residence.3

 Here, no such 

 3

 Mr. Beattie’s other arguments concerning this Fourth Amendment claim fail 

under our qualified immunity analysis: 

 

First, Mr. Beattie argues that the officers unconstitutionally arrested him for 

disorderly conduct—the charge they allegedly “tacked on” to the lewd and lascivious 

behavior charge. Even if probable cause did not exist to arrest and charge him with 

disorderly conduct, however, probable cause to arrest Mr. Beattie for lewd and 

lascivious behavior would have been sufficient to justify the arrest. “[T]he probable 

cause inquiry . . . requires merely that officers had reason to believe that a crime—

any crime—occurred.” United States v. Turner, 553 F.3d 1337, 1345 (10th Cir. 

2009). “An arrested individual is no more seized when he is arrested on three 

grounds rather than one; and so long as there is a reasonable basis for the arrest, the 

seizure is justified on that basis even if any other ground cited for the arrest was 

flawed.” Holmes v. Village of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007). 

Because no clearly-established law informed the officers that they lacked probable 

cause to arrest Mr. Beattie for lewd and lascivious behavior, his claim regarding 

disorderly conduct fails. 

 

Second, he argues that Officer Smith’s decision to seek a misdemeanor charge 

under Kan. Stat. Ann. § 21-5513, after he had previously arrested him for a felony

(continued) 
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information undermined probable cause, there was no ambiguity concerning the 

suspect, and Mr. Beattie was located in his room where the Ms. Huske said he would 

be found. In short, Mr. Beattie has failed to show that the officers violated clearly 

established law based on lack of probable cause. 

b. Exigent Circumstances and Qualified Immunity

Mr. Beattie contends that in addition to probable cause, the officers needed 

either a warrant or exigent circumstances to enter his hotel room to arrest him there.4

 

In a public place, officers may arrest an individual without a warrant or exigent 

circumstances, so long as they have probable cause to make the arrest. United States 

v. Watson, 423 U.S. 411, 423–24 (1976). But if officers seek to arrest an individual 

 

violation of the statute, suggests the arrest was unsupported by probable cause. The 

only difference between a felony and a misdemeanor violation of the statute concerns 

whether a person under the age of 16 was present. See Kan. Stat. Ann. § 21-5513(b). 

According to Mr. Beattie’s complaint, Officer Smith told him after the arrest that 

“since there were children in the area, it will be a felony offense.” Aplt. App. at 129 

¶ 129. The complaint does not allege that Officer Smith’s statement concerning the 

presence of children was false. Given this, Mr. Beattie fails to show that the arrest 

for a felony, although only a misdemeanor was ultimately charged, violated his 

constitutional rights. 

Finally, Mr. Beattie argues that Officer Smith’s asking Ms. James, a member 

of the tribal security staff, whether she wanted to press charges delegated the 

probable cause determination to Ms. James. Whether Ms. James wanted to press 

charges has nothing to do with probable cause, and the argument therefore fails to 

state a plausible claim. See Slater, 719 F.3d at 1196 (stating plausibility standard). 

 

4

 “A motel room may be considered a ‘dwelling’ for purposes of the validity of 

a warrantless arrest.” United States v. Wicks, 995 F.2d 964, 969 (10th Cir. 1993). 
- 17 - 

within his dwelling, they must also have the right to enter the home to effectuate the 

arrest. See Payton v. New York, 445 U.S. 573, 590 (1980). 

Officers may gain a right of entry in several ways. First, they may obtain an 

arrest warrant. Id. Absent a warrant, the officers may enter a dwelling if they have 

probable cause for the arrest and exigent circumstances exist to justify the entry. 

Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (“[P]olice officers need either a warrant 

or probable cause plus exigent circumstances in order to make a lawful entry into a 

home.”). Finally, even if the officers have neither a warrant, nor probable cause and 

exigent circumstances, “[a]n individual may also consent to a warrantless intrusion 

into his home.” Hogan v. Cunningham, 722 F.3d 725, 732 (5th Cir. 2013). 

Here, it is undisputed that Mr. Beattie voluntarily permitted the officers to 

enter his room. Mr. Beattie points to no clearly-established law holding that where 

valid consent has been given to the officer’s entry into the suspect’s dwelling, the 

officer must also show that probable cause and exigent circumstances justified the 

arrest that took place there. Nor have we found such authority. See, e.g., United 

States v. Cruz-Mendez, 467 F.3d 1260, 1265 (10th Cir. 2006) (“Consent can justify 

an entry into a home, regardless of whether there is probable cause.”); id. at 1269 

(“Payton holds only that “the Fourth Amendment . . . prohibits the police from 

making a warrantless and nonconsensual entry into a suspect’s home in order to 

make a routine felony arrest. [Where] the officers’ entry . . . was consensual, Payton

does not apply.”). Cf. United States v. Morris, 977 F.2d 677, 688 (1st Cir. 1992) 
- 18 - 

(“[A] determination of whether probable cause or exigent circumstances existed will 

be unnecessary if a defendant voluntarily consents to [a warrantless] search.”). 

Therefore, the officers were entitled to qualified immunity as to this portion of 

Mr. Beattie’s claim as well. 

2. State Law Claims

Mr. Beattie also argues that the district court erred in determining that his 

state-law claims against the officers were barred by the KTCA’s discretionary 

function exception. See Kan. Stat. Ann. § 75-6104(e). He contends that Kansas law 

“does not grant officers a discretionary right to violate established law, i.e. the Fourth 

Amendment,” Aplt. Opening Br. at 29, and that because the officers “lacked probable 

cause and exigent circumstances . . . they were afforded no discretion to execute a 

warrantless arrest, or to violate the Fourth Amendment,” id. 

The alleged Fourth Amendment violation here involves the adequacy of the 

officers’ investigation before making an arrest. Under Kansas case law, the method 

of conducting an investigation falls within the scope of an officer’s discretion. 

See Soto v. City of Bonner Springs, 238 P.3d 278, 286 (Kan. 2010) (citing cases 

describing investigatory procedures, such as “the precise steps to be taken . . . to 

verify personally identifying information,” the “manner of conducting an 

investigation” and the “people to whom social workers converse in supervising child 

placements” as discretionary functions). The officers’ decision to arrest Mr. Beattie 

was a discretionary decision because it involved “personal deliberation, decision and 
- 19 - 

judgment.” Id. at 287 (quoting Davis v. Klevenhagen, 971 S.W.2d 111, 117 

(Tex. App. 1998)). “An officer’s decision regarding ‘if, how, and when to arrest a 

person’ is discretionary.” Id. (quoting Davis, 971 S.W.2d at 117-18 (citation and 

emphasis omitted)). “Likewise, a police officer is engaged in a discretionary 

function in determining ‘how to investigate, and to what extent to investigate before 

seeking a warrant.’” Id. (quoting Davis, 971 S.W.2d at 118 (citation and emphasis 

omitted)). 

Mr. Beattie does not allege that the officers’ conduct was “wanton” such that it 

would fall outside the discretionary function exception. See id. at 284-85 (discussing 

“wanton conduct” exception). Nor, as we have seen, did the officers’ actions violate 

clearly-established Fourth Amendment law. The district court properly dismissed 

this state-law claim based on the discretionary function exception. 

B. State-Law Claims Against Ms. Huske, Ms. James, and Mr. Rodecap

 Mr. Beattie argues that the district court incorrectly dismissed his false arrest 

and malicious prosecution claims against the Resort’s security personnel.5

 In ruling 

on these claims, the district court stated as follows:6

 5

 Although Mr. Beattie claims to have preserved his state-law claims against 

Officers Smith and Bauer, see Aplt. Opening Br. at 36, his argument concerning 

liability under the KTCA addresses only his claims against the Resort security 

personnel, see id. at 30-32. His sole argument concerning the KTCA claims against 

the officers concerns the discretionary function exception, which we have discussed, 

supra. 

6

 The district court’s analysis seems to have been directed primarily at the 

personal participation requirement for the § 1983 constitutional claims against the 

(continued) 
- 20 - 

Here, the allegations show only that [Ms.] Huske made a report, based 

upon her interview with [Ms.] Robinson, and that [Ms.] James later told 

the Tribal Police where they could find [Mr.] Beattie. They were 

present while the Tribal Police officers interrogated [Mr.] Beattie, and 

decided to press charges, again based on the word of one of their other 

guests. Even assuming that the Tribal Police should have conducted a 

better investigation, the plaintiff has failed to show how these hotel 

employees are legally responsible for the actions of the Tribal Police, or 

that the hotel employees had a duty to intervene in the police 

investigation. 

Aplt. App. at 191. 

1. False Arrest 

 With regard to his false arrest claim, Mr. Beattie argues that he was only 

required to allege that the Resort security employees “instigated the arrest, assisted in 

it, or by some means directed or encouraged it.” Aplt. Opening Br. at 30 (citing 

Thurman v. Cundiff, 580 P.2d 893 (Kan. App. 1978)). But Kansas law provides that 

“the mere giving of information to a peace officer tending to show that a crime has 

been committed is not enough to render the informer guilty of resulting false 

imprisonment by the officer,” and “[o]ne is not liable for false arrest where he merely 

states to a peace officer his knowledge of a supposed offense and the officer makes 

the arrest entirely upon his own judgment and discretion.” Thurman, 580 P.2d 

at 898. 

 Mr. Beattie attempts to show that the security personnel were not mere passive 

reporters of an alleged crime but active facilitators of his arrest. 

 

Resort security personnel. Mr. Beattie addresses the analysis specifically as it relates 

to the state-law claims. We will consider his argument in this context. 
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First, he argues that “Huske, Rodecap, and James [assisted in] criminal 

proceedings against Beattie based on false and/or materially omitted information in 

their reports.” Aplt. Opening Br. at 31 (emphasis added). But of the three security 

personnel, only Ms. Huske is alleged to have filed a report concerning the incident. 

And her written report and video were prepared after the arrest. Probable cause is 

assessed at the time of the arrest. See, e.g., Courtney v. Okla. ex rel. Dep’t of Public 

Safety, 722 F.3d 1216, 1225 (10th Cir. 2013). A report that came afterwards could 

not have influenced the officers to arrest Mr. Beattie. 

 Second, Mr. Beattie claims that the security personnel were “involved in 

creating the 9-minute ‘investigation’ leading to [his] arrest,” Aplt. Opening Br. at 31, 

suggesting that they caused an abbreviated investigation. The complaint fails to 

allege that the security personnel encouraged the officers to cut short their 

questioning, caused them to not interview available witnesses, or urged them to hurry 

up and arrest Mr. Beattie. In short, Mr. Beattie’s allegation is conclusory and 

unsupported. 

 Third, Mr. Beattie asserts that the security officers “detained and interrogated 

[Mr.] Beattie in his hotel room.” Id. Although the complaint does state that 

Mr. Beattie permitted Ms. Huske and an unnamed “additional male security 

employee” to enter his room, Aplt. App. at 24 ¶ 73, there is no allegation that hotel 

security personnel detained Mr. Beattie or interrogated him there. 
- 22 - 

 Fourth, Mr. Beattie asserts that Mr. Rodecap “initiated contact with the Tribal 

PD.” Aplt. Opening Br. at 31. Merely contacting the police to investigate an alleged 

crime does not in itself constitute assistance in a wrongful arrest. Thurman, 580 P.2d 

at 898. 

 Finally, Mr. Beattie asserts that Ms. “James expressly requested [his] arrest.” 

Aplt. Opening Br. at 31. According to the complaint, Ms. James merely responded to 

Officer Smith’s inquiry concerning whether the Resort wished to press charges. 

Officer Smith did not ask Ms. James for her opinion nor did she offer one on whether 

probable cause existed, whether Mr. Beattie had committed the acts alleged against 

him, or whether he should be arrested. Notwithstanding Officer Smith’s inquiry 

about pressing charges, Mr. Beattie fails to show that Officer Smith did not exercise 

his own discretion in determining whether probable cause existed for the arrest. See 

Thurman, 580 P.2d at 898. 

2. Malicious Prosecution 

 Turning to his malicious prosecution claim against the Resort’s security 

personnel, Mr. Beattie argues that after he was arrested, Ms. Huske, Ms. James and 

Mr. Rodecap possessed significant factual information that tended to discredit 

Ms. Robinson’s story. The only specific example mentioned in Mr. Beattie’s brief 

and drawn from his complaint concerns information that Ms. Robinson told Officer 

Bauer when he interviewed her after the arrest. This information was allegedly 
- 23 - 

inconsistent with what Ms. Huske told Officer Bauer after the arrest, or put in her 

report. 

Although the complaint alleges numerous inconsistencies in the reports filed 

by the officers and Ms. Huske, there is no specific allegation that Ms. Huske lied to 

Officer Bauer; in fact, Mr. Beattie uses Ms. Huske’s statements to call 

Ms. Robinson’s story into question. Nor does he allege that Ms. Huske deliberately 

concealed post-arrest information from the officers. The only wrongdoing he now 

asserts by Ms. Huske or any Resort security person is that “[d]espite security’s access 

to [the inconsistent] information, not one employee ever requested to drop the 

criminal case.” Aplt. Opening Br. at 32. This is insufficient to state a claim for 

malicious prosecution against the Resort’s security personnel. See Lindenman v. 

Umscheid, 875 P.2d 964, 974 (Kan. 1994) (setting forth elements of malicious 

prosecution under Kansas law). 

C. Vicarious Liability Claim Under the KTCA Against the Tribal Entities

 As we have seen, Mr. Beattie has failed to allege an actionable “negligent or 

wrongful act or omission” by any employee of the Tribal Entities acting within the 

scope of his or her employment. See Kan. Stat. Ann. § 75-6103(a) (stating standard 

for vicarious liability under KTCA). Therefore, any vicarious liability claim against 
- 24 - 

the Tribe and its police department, to the extent asserted in his complaint,7

 must fail 

as well. 

III. CONCLUSION

 The judgment of the district court is affirmed. 

 ENTERED FOR THE COURT, 

 Scott M. Matheson, Jr. 

 Circuit Judge 

 7

 The district court found that the complaint did not expressly state a claim for 

vicarious liability. See Aplt. App. at 193.